Jones v Heaphy

LEGISLATION CITED: Civil Liability Act 2002 Motor Accidents Compensation Act 1999

Joslyn v Berryman (2003) 214 CLR 552 CASES CITED: Makita (Australia) Pty Limited v Sprowles (2001) 52 NSWLR 705 Mackenzie v The Nominal Defendant [2005] NSWCA 180 Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALRJ 492

PARTIES: Melissa Joy Jones - Plaintiff Jarrod James Heaphy - Defendant

COUNSEL: P Webb QC, J G Stewart - Plaintiff P D Ryan - Defendant

SOLICITORS: Gibney & Gunston - Plaintiff Moray & Agnew - Defendant

1 At about 2 am on 20 February 2003 Jarrod James Heaphy drove a car at excessive speed through the streets of Culcairn, lost control of it and caused it to collide with a power pole in Edward Street. Melissa Joy Jones was seriously injured. She was a front seat passenger in the car driven by defendant.

2 The accident occurred after the plaintiff, the defendant and a number of other young persons spent the evening and early hours of 19 and 20 February 2003 at an hotel, a private home and the caravan park in Culcairn. They all consumed alcohol and some of them smoked marihuana.

3 At the time of the accident the defendant was not licensed to drive a motor vehicle. A test of blood taken from the defendant at 4.10 am on 20 February 2003 returned a blood alcohol concentration of 0.173 g of alcohol per 100 ml of blood. Dr Dauncey estimated that the concentration at the time of the accident was in the region of 0.188%.

4 Ms Jennifer Preston owned the car. She was a rear seat passenger at the time of the accident.

5 The defendant admitted breach of duty of care but claimed contributory negligence on the part of the plaintiff alleging that she travelled in the car with him at a time when she knew or ought to have known that his capacity to drive was impaired by alcohol, marihuana and fatigue. The defendant claimed that the plaintiff's level of contributory negligence was such that no award of damages should be made in her favour.

6 The defendant also disputed the extent of the damage and loss claimed by the plaintiff.

7 The defendant bore the onus of proving contributory negligence on the part of the plaintiff. He referred to aspects of the plaintiff's evidence said to indicate that her evidence generally should not be accepted. The defendant's concerns included: 1 The plaintiff's evidence concerning her driving record. 2 The conflict between the plaintiff's evidence and that of the defendant's witnesses on the question of whether she smoked marihuana on the night of the accident. 3 The various statements attributed to the plaintiff concerning the extent to which she consumed alcohol on the night of the accident. 4 The conflict between the plaintiff's evidence and that of some of the defendant's witnesses concerning the extent to which she had the opportunity to observe the defendant prior to the accident. 5 The reliance to be placed on the material contained in a statement prepared by Detective Irving on 21 February 2003. 6 Evidence said to indicate that her claimed level of disability conflicted with recorded observations of the plaintiff's activities in August and September 2008. 7 The alleged under reporting by the plaintiff to medico-legal consultants of the extent of her pre-accident psychological problems.

8 The defendant's challenges to the plaintiff's evidence relating to her injuries are discussed in the section of these Reasons dealing with that aspect of her claim.

9 The driving record: Questioned concerning her driving record, the plaintiff stated that she believed she had obtained her driving licence only one year prior to the accident. She said she obtained a learner's permit when she was aged 17 or 18 and that she was fined for an offence while driving on that licence. She believed the offence related to driving under the influence of alcohol. She said her legal representatives made inquiries but no record of this charge could be located.

10 The plaintiff was subsequently presented with a driving record that indicated that she in fact held a licence in 1995, at the age of 23, that was cancelled after a conviction for driving while affected by alcohol and that in 1996 there was a conviction for a similar charge and for driving without a licence. The plaintiff said that many bad things were happening in her life at the time.

11 The marihuana issue: The plaintiff denied absolutely that she smoked marihuana at Ms Preston's home on the evening prior to the accident. The defendant was not asked questions on this topic. Ms Preston's evidence was that she, together with the plaintiff, the defendant and Ms Kent went into her bedroom and that they each smoked one to two cones of marihuana. According to Ms Kent those who were smoking were herself, the plaintiff, the defendant, Ms Preston and Mr Sadler. She remembered that they had three cones each and also drank alcohol. Mr Sadler said that the plaintiff, Ms Preston and Ms Kent went to the bedroom to smoke. He agreed that he was a good friend of the defendant at the time and was aware that he did not smoke marihuana because he did not like it. Mr Sadler had the same attitude to this drug and therefore did not smoke it.

12 The plaintiff's consumption of alcohol: The plaintiff's evidence was that she drank three to four cans of Woodstock Bourbon and Coke at the hotel and that she consumed no further alcohol after leaving the hotel. The plaintiff denied that she spent time drinking at Ms Preston's home. Ms Preston thought that the plaintiff drank one beer at her home before they left to drive to the caravan park. Ms Kent said that at Ms Preston's home the plaintiff drank beer with the defendant and Mr Sadler while in the bedroom. She described them drinking from cans that were brought into the house in a slab, rather than the bottles referred to by the defendant and Mr Sadler and those observed by Police Constable McLachlan in the car after the accident. Mr Sadler said he observed the plaintiff drinking beer with the defendant on two occasions at Ms Preston's house prior to the accident but subsequently agreed that he was not certain that there was a second occasion.

13 The defendant pointed to the record in the Ambulance Service report to the plaintiff's having consumed 7 UDL's. The plaintiff could not explain this record but I note that at the time she was attended to by ambulance officers the plaintiff was suffering from very severe injuries to the point where she was concerned that she might die. I did not consider that this record was reliable. The Personal Injury Claim Form referred to the consumption of a few glasses of beer and Dr Langeluddecke recorded that the plaintiff said she had consumed two stubbies of beer on the evening of the accident. The plaintiff explained the entry in the Claim Form as having been made by a former solicitor. She could not explain Dr Langeluddecke's record.

14 There was no certificate in evidence concerning the concentration of alcohol in the plaintiff's blood at the time of the accident. It was put to her in the course of cross examination that a test of blood taken two hours after the accident returned a result of 0.073g%. The plaintiff was unable to confirm or deny this figure.

15 Dr Dauncey, on the basis of this result, calculated the plaintiff's blood alcohol content at the time of the accident to have been 0.1g%. In Dr Dauncey's opinion this figure was reasonably consistent with the plaintiff's recollection of drinking four Woodstock Bourbon and Cokes and with the plaintiff's assessment of her condition as relaxed but not drunk.

16 The plaintiff's pre-accident observations of the defendant's consumption of alcohol: The plaintiff denied that she had the opportunity to observe the defendant's drinking during the evening. She said she went to the hotel at about 7.30 or 8.30 pm and that she spent her time there drinking while she played poker machines in a separate area of the hotel. She denied that she saw the defendant and Mr Sadler at the hotel and that she spent any time drinking with them at the hotel.

17 The plaintiff said she met with Ms Preston when she came to the hotel at about 10 pm to buy some drinks and chips for herself. At that time she was ready to leave and she went in Ms Preston's car to Ms Preston's home in Balfour Street. When she entered the home she became aware that the person babysitting Ms Preston's child was Ms Kent. She did not get on with Ms Kent so she did not stay inside the house but left and sat in Ms Preston's car.

18 The plaintiff said she first saw the defendant and Mr Sadler that evening at about 10.30 pm at Ms Preston's home. They crossed Balfour Street and went into the house. She did not notice if they were carrying a slab of beer.

19 The defendant had no recollection of speaking to any women at the hotel. He remembered that Mr Sadler was there.

20 The defendant did not remember the plaintiff's presence at the hotel or at Ms Preston's home. He did remember that she was in the car when he drove to the caravan park.

21 Ms Preston described the hotel as having essentially one large room. She said there were only about five people at the hotel when she arrived. This evidence suggested that it would have been difficult for the plaintiff not to notice other patrons of the hotel, even if she were not drinking with them.

22 Ms Preston confirmed the plaintiff's evidence that after she returned to her home the defendant and Mr Sadler arrived. They brought with them a slab of beer. She remembered that the plaintiff, the defendant, she and Ms Kent were drinking in her lounge room. She could not say what Mr Sadler was doing.

23 Mr Sadler remembered arriving at the hotel with the defendant at about 9 pm and that the plaintiff arrived 30 minutes later. He saw the plaintiff talking to the defendant and drinking beer. Mr Sadler said that Ms Preston came to the hotel with Ms Kent and that he did not see what they did while they were there.

24 Ms Kent said that she went to the hotel with Ms Preston at about 9.30 pm and that they stayed to drink beer after meeting the plaintiff, the defendant and Mr Sadler who were all drinking beer. Ms Preston initially said that she went to the hotel with Ms Kent but later said that she went alone, leaving Ms Kent to babysit her daughter.

25 The statement of 21 February 2003: The statement contained what were alleged to be details of the events of the night of 19 - 20 February 2003. It was inconsistent with the plaintiff's evidence concerning the amount of alcohol she consumed, her exposure to the defendant at the hotel, her drinking with the defendant at Ms Preston's home, her exposure to the defendant's driving and whether it was erratic, the persons present at the caravan park and her observations of the defendant's level of sobriety.

26 There were a number of problems confronting the defendant in relying on this statement.

27 The statement was taken at 11.30 am one day after the accident. The plaintiff was very seriously injured. Her injuries included a burst spinal fracture, a crush injury to her left ankle and internal abdominal injuries. She was at the time a patient of Albury Base Hospital. The hospital notes indicated that on 21 February 2003 she was receiving morphine for pain relief and, when awake, she was complaining at frequent intervals of severe pain, suffering from double vision and from nausea that caused her to vomit. To Detective Irving she appeared not to show signs of difficulty in dealing with the interview. He did not remember if he checked the plaintiff's level of capacity with medical staff before he took the statement. He remembered that the plaintiff's injuries were serious. He remembered that she was conscious but did not remember whether she was sitting or lying down, displayed symptoms of nausea, severe pain or whether she self-administered morphine.

28 The plaintiff denied any memory of having given the statement. She remembered only that someone came to her hospital room and spoke with her and that this person told her he was having trouble with his computer.

29 Her de facto partner at the time of the accident, Mr Scott Harris, confirmed that the plaintiff told him that a person who had computer trouble visited her. He was not present at the time of the interview. He described the plaintiff as dazed and incoherent after admission to the hospital and said she remained incoherent until after two surgical procedures were carried out to fix the fractures. Mr Harris remembered that Ms Preston and her mother visited the plaintiff during this period and spoke to her about the accident.

30 Detective Irving confirmed that he took a laptop computer and printer to the hospital and that at the time of the interview the printer failed to operate. For this reason he returned to the police station to print the statement before returning to the plaintiff's hospital room at 3.30 pm to have the statement signed.

31 Detective Irving did not remember if he received statements from any other witnesses prior to interviewing the plaintiff or finalising her statement. He acknowledged that he instructed Police Constables McLachlan and King to take statements. He accepted that it was possible that he had them prior to the interview with the plaintiff on 21 February 2003 when he was shown facsimile cover sheets indicating that he received 23 pages of statement materials late on 20 February 2003 from witnesses identified as Mr Graham, Mr Sadler, Mr Angus (Mario) and Mr Harrison.

32 Material contained in the statement taken by Detective Irving was inconsistent not only with the plaintiff's evidence. It was inconsistent with much of the evidence of the defendant's witnesses. A further difficulty for the defendant was that there was no evidence put before the court to support some of the material contained in the statement.

33 Examples of these deficiencies were: Paragraph 3: Ms Preston's evidence and that of the plaintiff was inconsistent with paragraph 3 of the statement. Ms Preston said that she bought her drinks at the hotel and left after 10 to 15 minutes. She gave no evidence of drinking at the hotel. Ms Preston gave no evidence of talking generally with the plaintiff, defendant and Mr Sadler. Her evidence was that she spoke with the plaintiff and the defendant before leaving. The evidence of the defendant's other witnesses on this topic has already been referred to. Only Ms Kent remembered talking generally with the plaintiff, the defendant and Mr Sadler at the hotel. Paragraph 4: Most of this paragraph was inconsistent with the evidence of the plaintiff, Ms Preston, the defendant and Mr Sadler. The plaintiff was recorded in paragraph 4 of the statement as stating that she walked to Ms Preston's house with Ms Preston, the defendant and Mr Sadler. This fact was not supported by any of the defendant's witnesses. Ms Preston confirmed the plaintiff's evidence that she drove only the plaintiff to her home. The defendant did not remember how he got to the house. Ms Kent and Mr Sadler said that they were all driven to Ms Preston's home in her car. Paragraph 7: The plaintiff denied much of the material contained in this paragraph. The defendant and Ms Preston said that only they and the plaintiff went to the caravan park to confront Mario. Ms Kent confirmed this evidence. Ms Kent also said that the defendant drove the car from the outset. Ms Preston said that she initially drove the car. She did not remember the circumstances in which the defendant took over the driving. Mr Sadler was the only witness to state that he joined the defendant, plaintiff and Ms Preston on this drive. He was the only witness to state that the defendant fell out of the car, that Ms Preston stepped out to check if he was all right and that the defendant then started to drive. He was the only witness to state that they went for a drive other than to the caravan park. Ms Preston was unsure if, on the way to the caravan park, they stopped and exited the car at the house of a person referred to as Possum. Mr Sadler said that they drove to Nathan Brown's house. It was not clear whether Mr Brown was also known as Possum. There was no evidence from anyone known as Hugh or Possum to confirm that they were in the car at any time. There was conflict in the evidence concerning the number of times the car was driven from Ms Preston's house. The plaintiff was sure that there was only one trip to the caravan park and that it was on the return journey that the accident occurred. The defendant also believed that there had been only one journey. Ms Preston said that after confronting Mario at the caravan park they returned to her home and left again with the intention of buying more marihuana and then returning to the caravan park. Ms Kent remained at Ms Preston's home. She said Ms Preston, the plaintiff and the defendant returned after about 30 to 45 minutes and then left again. Mr Sadler also stated that there was more than one journey but subsequently agreed that he did not remember if this was correct.

34 I accept that the plaintiff signed the statement taken by Detective Irving and that she made a correction to paragraph 7 at the time she signed it.

35 On 14 August 2003, after reading of the defendant's conviction and the lenient penalty involved, the plaintiff went to the police station at Culcairn where Senior Constable McLachlan recorded a second statement. The plaintiff was challenged on why in this later statement she did not specifically deny parts of the statement of 21 February 2003. Her response was that she was concerned to record accurately the part of the journey on which the accident occurred. She was particularly concerned to state the extent of her injuries and ongoing disabilities having regard to the indication that the court hearing the charges against the defendant was informed that she was fully recovered. She said Senior Constable McLachlan appeared to be in a hurry at the time and the statement was kept short. Senior Constable McLachlan subsequently gave evidence. No questions were asked of him to suggest that this evidence of the plaintiff was incorrect.

36 Consistently with the plaintiff's evidence, the second statement did record that she had no recollection of having provided a statement on 21 February 2003. It was also consistent with her evidence of the circumstances in which she met with the defendant and Mr Sadler prior to the accident, her attempt to leave the car when the defendant first drove dangerously and his subsequent behaviour leading to the accident and with her evidence concerning her ongoing pain and disability as a consequence of the accident.

37 The plaintiff's evidence concerning her driving record was clearly inaccurate. In deciding whether this was the result of deliberate deception on the part of the plaintiff or of confusion and the blurring of her memory, I noted that the plaintiff did not seek to hide from the court her pre-accident history that included her exposure to and participation in a culture of heavy drinking from her early adolescent years. Nor did she resile from the proposition that she used cannabis, although she denied that she consumed it to the extent put to her in cross examination. In the light of these disclosures, there appeared to be no advantage to the plaintiff in deliberately seeking to withhold from the court convictions for drink driving offences that were committed several years prior to the accident.

38 I find that the inaccuracies in this evidence were the result of a lapse of memory of the part of the plaintiff. They therefore have not affected my assessment of her general credit.

39 The post accident blood test result indicated that, whether she consumed alcohol at the hotel or Ms Preston's home, the quantity involved was consistent with the plaintiff's evidence of four Woodstock Bourbon and Cokes.

40 In respect of marihuana, both Ms Preston and Ms Kent were clearly incorrect in stating that the defendant participated in the smoking said to have taken place in Ms Preston's bedroom. Ms Kent was incorrect in placing Mr Sadler there. Mr Sadler's evidence overall was undermined by inconsistencies and the effect on his memory of the considerable quantity of alcohol he consumed. I regarded their evidence on this part of the evening to be inconsistent and unreliable and I rejected it. The result was that there was no reliable evidence that the plaintiff was dishonest about her use of marihuana prior to the accident.

41 In dealing with the plaintiff's pre-accident observations of the defendant I noted that the defendant and the plaintiff agreed that they had no contact at the hotel. The evidence of the defendant's witnesses on this topic was inconsistent. Ms Preston said she spent 15 minutes drinking and talking to the plaintiff, the defendant and a third person, not being Mr Sadler, at the hotel. Mr Sadler said that Ms Preston and Ms Kent came together to the hotel but he did not see what they did there and that he and the defendant left with them almost immediately. I had serious concerns about whether Ms Kent was present at all at the hotel. I have already noted that her evidence concerning the consumption of marihuana was unreliable. Her evidence that, in company with Ms Preston, she spent time drinking with the defendant, the plaintiff and Mr Sadler at the hotel was inconsistent with that of all other of the defendant's witnesses. I rejected it.

42 Mr Sadler agreed that his memory of the events of the evening was not good. It was possible that this affected his evidence of what happened at the hotel, although he appeared to confirm the plaintiff's assertion that it was possible to be in the hotel and to remain unaware of what other patrons were doing.

43 The best that could be said of the evidence was that the plaintiff and the defendant were both present at the hotel between about 9 pm and 10.30 pm and that, in the light of the description of the hotel layout, it was improbable that the plaintiff was unaware of the defendant's presence there. The unreliability of Mr Sadler's evidence generally and the overall inconsistencies in the evidence of the defendant's witnesses persuaded me to conclude that I should accept the evidence of the plaintiff and the defendant that there was no interaction between them at the hotel.

44 Only Mr Sadler suggested that the defendant was drinking at Ms Preston's home on two occasions prior to the accident. This evidence was weakened by his concession that he was not sure that there were two such occasions. Ms Preston gave no evidence of the amount of alcohol consumed by the defendant. She stated only that the defendant drank from bottles taken from the slab he brought with him. Ms Kent referred to the defendant's drinking from cans of beer for one hour before driving to the caravan park.

45 To the extent that Mr Sadler's memory might be relied upon, it was that the defendant drank two to three beers before driving to the caravan park.

46 The result was that, even if I rejected the plaintiff's statement that she did not remain in Ms Preston's home while this drinking took place, the evidence suggested a moderate level of consumption of beer by the defendant before the journey to the caravan park.

47 I could place little reliance on the material contained in the statement taken by Detective Irving having regard to evidence concerning the plaintiff's medical condition at the time it was taken and to the considerable inconsistencies that it contained. To the extent that it was inconsistent with or not supported by the evidence provided to the court, it has been disregarded.

48 My assessment of the plaintiff's credit was supported by the manner in which she gave her evidence. I gained the impression that the plaintiff did her best to respond to the questions asked of her. She maintained a courteous and appropriate attitude to lengthy cross examination that extended to searching inquiry into sensitive areas of her life and background.

49 On the issue of the plaintiff's general credit, therefore, while I entertained some doubts concerning the plaintiff's evidence that she was unaware that the defendant was at the hotel and that she did not remain in Ms Preston's house before travelling to the caravan park, I was not persuaded that overall her evidence should be rejected as dishonest or unreliable.

50 In deciding this issue it was necessary to apply the common law relating to contributory negligence as supplemented by legislation.

51 In the circumstances of this case, s 138(2) of the Motor Accidents Compensation Act 1999 compelled the court to make a finding of contributory negligence where the defendant proved by reliable evidence that: (i) the plaintiff was, at the time of the accident, a voluntary passenger in the motor vehicle; and (ii) the defendant's ability to drive the motor vehicle was impaired as a consequence of the consumption of alcohol or any other drug; and (iii) the plaintiff was aware or ought to have been aware of the impairment.

In this case, the only issue related to the extent to which the plaintiff was or ought to have been aware of the impairment to the defendant's capacity to drive.

52 The standard of care to be applied is dealt with in s 5R of the Civil Liability Act 2002 where it is provided: (1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm. (2) For that purpose: (a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and (b) the matter is to be determined on the basis of what that person knew or ought to have known at the time.

53 In submitting that the court should assess the plaintiff's contributory negligence at 100% the defendant relied on s 5S of the Civil Liability Act.

54 The common law position was dealt with by McHugh J in Joslyn v Berryman (2003) 214 CLR 552 at [32] to [38] to the effect that the test of contributory negligence is objective, the inquiry being made from the perspective of an ordinary reasonable person engaging in the conduct that caused the plaintiff's injury. The question is what the passenger should have known because the relevant facts and circumstances include those that a reasonable person could have known by observation, inquiry or otherwise. The issue, therefore, is whether an ordinary reasonable and sober person would have foreseen that accepting a lift exposed him or her to a risk of injury by reason of the driver's intoxication.

55 The following further factors were relevant to the determination of this issue.

56 The particulars alleged that the defendant was affected by alcohol, marihuana and fatigue. Aside from the evidence of Ms Kent, no witness suggested that the defendant smoked marihuana prior to the accident. To the contrary the evidence was that he did not like the substance and did not take it.

57 Although the defendant stated that he worked from 6 am to 3.30 pm on 19 February 2003, there was no evidence to suggest that the accident was the result of fatigue on his part or that he displayed characteristics of a person whose capacity to drive was impaired by fatigue.

58 The claims relating to marihuana and fatigue in so far as they concerned the defendant have therefore not been considered further.

59 I already noted the evidence that the defendant consumed considerable quantities of full strength beer prior to the accident. Mr Sadler estimated that they each drank 12 middies of full strength beer.

60 The plaintiff said that she was unaware of the extent to which the defendant was affected by alcohol both because she did not have the opportunity to observe him during the evening in question and because he did not exhibit characteristics of an intoxicated person. His driving to the caravan park did not alert her to the possibility that his capacity to drive might be impaired. The first indication that this might be so was when he turned off the sealed road and onto the stock route on the journey home.

61 Dr Dauncey's report was admitted over the plaintiff's objection. There were a number of major deficiencies in the report that, in ordinary circumstances, would have rendered it inadmissible on the principles set out in Makita (Australia) Pty Limited v Sprowles (2001) 52 NSWLR 705. I was persuaded to admit the report on the basis of the court's experience of Dr Dauncey's expertise both in the field of pharmacology and in the presentation of expert evidence. I made it clear in expressing my reasons for admitting the report that I would use the information and opinions contained in it only to the extent that they were supported by the evidence before the court.

62 I disregarded therefore the material set out in Dr Dauncey's report that was taken from statements provided to her to the extent that matters of fact referred to in the report were not put into evidence.

63 I accepted Dr Dauncey's assessment of the defendant's probable blood alcohol content of 0.188g% at the accident. I also accepted that at that level his capacity to drive was significantly impaired.

64 Unfortunately, Dr Dauncey's assessment of the defendant's probable appearance and behaviour was contaminated by unproven facts, namely, that he consumed marihuana and that, prior to the journey on which the accident occurred, he engaged in dangerous driving. Her assessment was also contrary to the evidence of the plaintiff and the defendant's witnesses.

65 The plaintiff said that Ms Preston initially refused to allow the defendant to drive. She said that the discussion about who was to drive took place outside Ms Preston's home and outside the car in which she was already seated. She was not concerned when Ms Preston subsequently allowed him to do so. It did not occur to her at the time to question the extent to which he might be affected by alcohol.

66 Dr Dauncey considered the plaintiff's capacity to assess the risk to her own safety involved in travelling in a car driven by the defendant. She offered a general opinion of the reduced cognitive capacity of intoxicated persons in recognising risk but her assessment of the plaintiff was affected by her acceptance that the plaintiff smoked several cones of marihuana that likely contributed to her level of intoxication. There was no reliable evidence that the plaintiff smoked marihuana or, if she did, the quantities involved. I have therefore not taken this assessment into account.

67 The defendant's driving on the way to the caravan park did not concern her. When they arrived at the caravan park, she and Ms Preston spoke with Mario. The plaintiff said that she then separated from Ms Preston and the defendant and sat in an area to the back of the caravan park. She believed that they remained at the caravan park for about two hours.

68 She heard Ms Preston and the defendant continue to abuse Mario. She not only heard the defendant shouting at Mario, she heard the car leave and heard its horn sound. She did not know who was driving at the time. She said she was not concerned that the defendant was behaving in a loud and obnoxious manner because he behaved in this way, drunk or sober. She described him as very silly and out there and not a quiet boy. His behaviour did not indicate to her that he was drunk.

69 Although she said that only she, the defendant and Ms Preston travelled in the car to the caravan park, she referred to Ms Preston's urging the defendant and Mr Sadler to attack Mario verbally and physically. At that point, she became concerned and told them to stop or she would call her father or the police.

70 The plaintiff said that she, Ms Preston and the defendant left the caravan park with the intention that the defendant would take her home. Instead the defendant drove off the road and onto the stock route, a dirt road on the edge of Culcairn. She started to panic and asked him to take her home. The defendant then increased the speed of the car, lost control of the back of the car and came close to colliding with a tree.

71 The plaintiff said that at this point she realised that the defendant had more to drink that she appreciated. She was very scared. After coming close to hitting the tree, he stopped the car. She opened the door, intending to get out but he told her to calm down and drove off again. She told him that she would jump out so he slowed down and acted normally again, saying he would take her home.

72 The defendant then began driving at speeds of up to 100 kph, crossing the Olympic Highway without stopping at the stop signs. The plaintiff said she and Ms Preston screamed at him to stop. The defendant applied the brakes, the car shuddered and he lost control of it, ultimately colliding with the power pole.

73 Ms Kent also said she observed the defendant before he drove on the final trip. To her, he appeared to be all right. She said he drove from the outset after he and Ms Preston argued over the keys of the car. The argument she said was more like he was looking out for the girls and thought he was in a better position to drive than them. She heard the defendant tell Ms Preston that she was pissed.

74 Mr Sadler said he did not go in the car on the final trip because he did not think it was safe to do so. He said the defendant drove very fast on the earlier trip and everyone was intoxicated. He said by the time of the final trip he and the defendant had drunk at least 12 beers each and they were both fairly drunk. He gave no evidence of having warned the plaintiff or Ms Preston that they should not travel with the defendant.

75 Ms Preston confirmed the plaintiff's evidence on two important aspects.

76 She said the defendant did not appear to be drunk. She would not have travelled in the car as a passenger if he appeared to be drunk. She was comfortable in the car as a passenger with the defendant driving when they departed on the journey on which the accident occurred. Up to that point the defendant's driving had been unremarkable. She would not have taken the risk if she thought his capacity to drive was impaired. She similarly would not have risked damage to her car.

77 Ms Preston confirmed the plaintiff's evidence that the defendant started to drive very fast when he turned on to the stock route and that he lost control of the car near a large tree with which he nearly collided. She confirmed that this was the first time he had driven in this way. She said that she and the plaintiff at this point started to protest about the defendant's driving, asking him to stop and let them out. She struck him on the shoulder in an attempt to persuade him to slow down. The defendant ignored their protests and continued to drive at speed. He did not give either of them the opportunity to get out despite their screaming and shouting at him to stop. Ms Preston subsequently said that after almost hitting the tree the defendant stopped the car, that she opened the door and she thought there might have been enough time for her to get out of the car had she wanted to. She did not know if the plaintiff also opened her door to the car.

78 The findings that I made in deciding Issue 1 coupled with this analysis of the relevant evidence resulted in the following scenario: 1 The plaintiff was probably aware of the defendant's presence at the hotel and therefore of the probability that he was consuming alcohol, although not necessarily the quantities consumed. 2 On the assumption that the plaintiff was present in Ms Preston's home, the plaintiff would reasonably have observed a moderate intake of beer by the defendant. 3 Even if she were not present in Ms Preston's home, the plaintiff was aware that Ms Preston had alcohol that was to be drunk by herself and Ms Kent in a context where it was unlikely that the defendant and Mr Sadler would be abstinent. 4 Only Mr Sadler suggested that the defendant displayed any overt signs of intoxication or of impaired driving capacity. His evidence that he spent any time in the car with the defendant was undermined by his concession that he was significantly intoxicated himself and that his memory of events was poor. In the circumstances, I have placed little weight on his observations of the defendant's condition. 5 All reliable evidence indicated that, notwithstanding the considerable quantities of alcohol consumed by the defendant, at the time the plaintiff took a position as a passenger in Ms Preston's car, he did not display overt signs of impairment in his general behaviour or in his capacity to drive. 6 Further, according to Ms Kent the defendant appeared to be concerned to look after Ms Preston and the plaintiff by preventing Ms Preston from driving when he believed that she was intoxicated.

79 I was not satisfied therefore that the defendant established that the plaintiff should have been aware from direct knowledge of the quantities of alcohol consumed by the defendant or from her observations of his behaviour that his ability to drive the car was impaired.

80 There remained therefore the question of whether a reasonable person in the plaintiff's position ought to have questioned the defendant's level of intoxication before travelling in a car with him as the driver.

81 There was no doubt that the plaintiff was in a situation involving young persons consuming alcohol, late at night, having been to an hotel and spent some time at the home of one of those persons. I concluded that a reasonable person in that position ought properly to have considered the question of whether the driver's capacity to drive was impaired by alcohol.

82 The plaintiff said that she did not think about it. I concluded that her failure to take account of the prospect that the defendant might be too intoxicated to drive safely involved an absence of care on her part for her own safety and that in this respect there was contributory negligence on her part.

83 As to the proportion in which the plaintiff and defendant shared responsibility for the plaintiff's injuries, I noted that the High Court in Joslyn v Berryman continued to apply the principles established in Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALRJ 492. On this basis I reject the proposition advanced by the defendant that the plaintiff's level of negligence should be assessed at 100%.

84 In decisions such as Joslyn v Berryman and Mackenzie v The Nominal Defendant [2005] NSWCA 180, the passengers were careless for their own safety to the extent that they were so drunk that they lost the capacity to assess the drivers' ability to drive without impairment. Even in those circumstances, the courts declined to apply a deduction of 100%.

85 In so far as the defendant suggested that a sober passenger had a greater level of responsibility than one who was paralytic, Justice McHugh in Joslyn v Berryman questioned the facility with which the courts might apply a concept that the standard of care fluctuated according to the level of sobriety of the passenger.

86 In this case, the evidence indicated that, had the plaintiff turned her mind to the defendant's behaviour, she would have noted that he appeared to be functioning normally and that his capacity to drive did not appear to be impaired.

87 When the plaintiff and Ms Preston became aware that the defendant was intoxicated to a level that was more than apparent on observation, they remonstrated with him. He appeared to accept their objections to his driving. I did not think it realistic to suggest that, the defendant having stopped the car and told the plaintiff to calm down she should, acting reasonably, leave the car on a dirt road on the edge of town in the early hours of the morning in order to walk some distance to her home.

88 The most that could be said was that on that night travelling as a passenger in a car driven by any member of the group exposed her to the danger that the driver's capacity might be impaired and it might therefore be prudent to ring her partner to arrange for him to collect her and drive her home.

89 In the circumstances I have assessed the plaintiff's contributory negligence at 20% and her damages will be reduced accordingly.

90 The defendant accepted that the plaintiff suffered serious injury in the accident but challenged the plaintiff's claims concerning the extent of her continuing disability. In particular, the defendant argued that the plaintiff did not require future medical treatment, domestic assistance or income support to the extent claimed.

91 The basis for the defendant's challenge was two-fold. It was claimed that the plaintiff recovered from her injuries to a greater extent than she claimed and that she exaggerated her claims of ongoing discomfort and disability. Secondly it was claimed that the plaintiff had a significant pre-accident history of psychological illness and addiction to alcohol, cannabis and gambling. The defendant claimed that the plaintiff inaccurately reported the extent of her pre-accident problems to medical practitioners after the accident.

The plaintiff's injuries and post accident treatment

92 The plaintiff said that after the collision with the power pole she suffered loss of consciousness. She was brought round by Ms Preston who left the car to get help. The plaintiff at that time was trapped by the engine of the vehicle that was located on her knees. Her seatbelt was tight across her body and she was unable to breathe. Her ankle was bent back on her leg. Blood was flowing into her eyes and affecting her vision. She had glass in her head, her nose was injured when it hit the dashboard and her eyes were swelling and closing over. She described extreme pain and said she thought at the time that she would die.

93 The plaintiff said that the defendant was initially unconscious. When he regained consciousness he climbed through the window of the car and left. She was alone for a period of time until a stranger passing by came to her assistance. He unclipped her seat belt but was unable to get her out of the car. He stayed with her and talked to her until emergency services arrived.

94 The plaintiff's suffered a closed head injury, burst fracture of the L3 vertebra, fracture and dislocation of the left ankle, injuries to her left kidney and liver, as well as multiple lacerations and bruising. The plaintiff remembered that during the rescue operation she overheard conversations dealing with the potential that she might die, lose her leg or that she might be flown to Melbourne for treatment.

95 The plaintiff was given morphine by ambulance officers and, when freed from the car, was taken by ambulance to Albury Base Hospital where surgery was undertaken over consecutive days to reduce and fix the ankle and spinal fractures. The plaintiff remembered little of the first six days of hospitalisation. She remembered that she was required to lie flat for an extended period and that her face was swollen and blackened by bruising. She was subsequently fitted with a lumbar brace.

96 Mr Scott Harris described the plaintiff as dazed and incoherent when he visited her after her admission to the hospital. He said her left foot was smashed with bone visible. She was bleeding extensively. He stayed at the hospital for two to three days and nights.

97 After a period of rehabilitation at the hospital, the plaintiff was discharged on 28 March 2003 with a wheelchair and crutches. The crutches were difficult to use because of the back injury. Her rehabilitation continued at her rented home at Culcairn with the assistance of community nursing, outpatient physiotherapy and mental health services provided by Albury Base Hospital and general practitioner and specialist medical consultation. Her family provided extensive personal and domestic care. On medical instructions it was necessary to interrupt the journeys from Culcairn to Albury for treatment at 15 to 20 minute intervals in order to provide the plaintiff with some respite. She travelled supported by pillows and blankets.

98 The plaintiff, Mr Scott Harris and his mother Mrs Patricia Harris described the difficulties from which she suffered while at Culcairn. These included continued considerable pain, very limited mobility and capacity for activity, difficulties securing comfortable positions and therefore sleeping. She was described as angry, irritable and emotional.

100 In July 2003 the strain of continued travel from Culcairn to Albury for treatment resulted in the plaintiff's moving with her family to a rented property in North Albury, where treatment continued. Mr Harris described her emotional condition by this time as withdrawn, angry and upset.

101 Treatment and rehabilitation continued. By this stage it included counselling. The plaintiff was able to mobilise with difficulty using a walking stick. She continued to suffer from constant severe back pain with discomfort sitting, standing or lying down. The pain affected her back, buttocks, thighs and legs. Her right lower leg suffered from an area of numbness. She was unable to sleep because of this pain.

102 The plaintiff described her left leg as absolute hell because of the pain, particularly from the mid shin down to the ankle. After discussion with her specialists concerning the extent of her pain and the absence of movement in the left ankle, Dr Slater performed an arthroscopy on the ankle in May 2004. The plaintiff said this procedure gave her no pain relief, rather it made her condition worse.

103 The plaintiff said that while she lived in Albury she was in much pain and very unhappy. Her family unit was not operating properly and in July 2004 she and Mr Scott separated. Shortly after that separation she moved with her children to the home of Mr Scott's parents, Patricia and Terry Scott, in Culcairn.

104 In August 2004 the plaintiff was treated with nerve blocks that gave her some relief from her back pain. She was admitted to a pain management program at Wodonga in September 2004. The plaintiff described this program as very helpful in teaching her to manage her pain. She attributed her current capacity to the coping strategies that she learned through this program.

105 In October 2004 the plaintiff and her children moved to Cobram to be closer to her mother and sister who at that time were providing considerable support.

106 In June 2005 a second arthroscopy of the left ankle also failed to relieve her pain.

107 In July 2007 surgery was undertaken on the plaintiff's spine because the metal screws inserted at the time of the original surgery were unstable. The plaintiff was hospitalised for 5 days following this procedure and bedridden at home for one week. The plaintiff complained of increased pain following this procedure and of swelling at the site of the surgical scar because some of the metalware remained in place. She said this pain was different and affected her right leg and hip. The net result was that there was no improvement in the condition of her back.

108 The plaintiff's current complaints were: 1 She had scarring on her back, including a scar 10 cm in length, lumpy at the top where a screw remained and indented. 2 She suffered from sharp pain in her back extending from the area of the scar down her right leg and into her right foot, occurring one or two times per week. The sharp pain subsided if she rested and rubbed the affected area but was then replaced by throbbing pain and backache for an extended period. 3 She suffered from constantly occurring pins and needles like a belt across the top of her buttocks, generating hot stabbing pain if touched. The pain fluctuated from mild to very severe and was triggered by activity, car travel or sleep. 4 She complained of daily left leg pain affecting the sole of the foot, the shin, knee and ankle joint. The ankle pain was constant. In the other areas of the leg it fluctuated in its intensity. The leg suffered from hot and cold sensations, discolouration from the toes to the knee and the foot and lower leg were scarred. 5 She had very limited movement in the foot and ankle, reducing to nil at night when the ankle swelled. 6 She continued to have difficulty sleeping notwithstanding the procedure she adopted since moving to Cobram of using long pillows to support various parts of her body and sleeping face down.

109 The defendant showed the plaintiff recordings made of her activities on 30 August 2008, 19 September 2008 and 23 September 2008. The defendant contended that these recordings indicated that the plaintiff was dishonest in her evidence and that her complaints of ongoing pain and disability were exaggerated.

110 The medical evidence put before the court in general supported the plaintiff's evidence concerning her symptoms. The only area of dispute between the experts relied on by the plaintiff and those of the defendant concerned the existence of a regional pain syndrome affecting the plaintiff's left ankle.

111 The only medical expert to raise questions about the plaintiff's complaints of physical discomfort was Dr Cummine. After examining the plaintiff in June 2005, Dr Cummine reported that the plaintiff's complaints were reasonable, that there was evidence of early osteoarthritis in the left ankle that was significantly likely to progress and that a burst vertebra at L3 would disrupt the L2/3 disc. In February 2007 he continued to regard the plaintiff's complaints as reasonable and he noted evidence of degenerative disc disease at L2/3 immediately adjacent to the burst fracture. In November 2007, Dr Cummine said that his conclusions were unchanged. He noted that Dr Slater's report after the arthroscopy undertaken in June 2005 referred to advanced osteoarthritis. In his report Dr Cummine raised for discussion the question of whether the level of osteoarthritis co-related accurately to the nature and extent of the plaintiff's apparent disability with some evidence of symptom and disability magnification. He did not set out the nature of the evidence to which he referred. He questioned whether the plaintiff was characterised by what he referred to as a chronic pain personality.

112 Aside from these comments by Dr Cummine, the medical experts reported upon the plaintiff's subjective complaints as well as objective elements that supported those complaints. Those reporting to the defendant included Dr McGill who, in July 2008, accepted as reasonable the plaintiff's complaints concerning her left ankle, low back and neck and reported observations of a slight limp with which the plaintiff walked and wasting in her left calf. Dr Dalton in June 2006 noted obvious wasting in the plaintiff's left thigh and calf consistent with disuse, marked stiffness in the left ankle and laxity in the ankle and tenderness in the ankle and shin. He noted limited mobility in the lumbar spine and mild loss of sensation in the right calf. He considered that the plaintiff's complaints and disabilities were consistent with her injuries. Asked to review a number of reports in May 2008, Dr Dalton's opinions remained unchanged.

113 Although Dr Spira found no evidence of neurological damage with the exception of that relating to the numbness in the right leg, he stated that the plaintiff co-operated well and presented her symptoms without dramatisation.

114 Dr Hillier performed surgery to fix the spinal fracture after the accident. In May 2005 he reported that the burst fracture affected the L2 to L4 segments of her spine leaving the plaintiff with permanent residual stiffness. In November 2007 he offered the opinion that the plaintiff's ongoing pain was the result of facet joint irritation and that she might potentially gain relief with injections and spinal exercise. He noted that an MRI scan indicated the presence of early degenerative changes.

115 Dr Slater performed surgery to fix the lower left leg fractures after the accident and two subsequent arthroscopies. As early as December 2004 he reported advanced post traumatic arthritis in the left ankle. In February 2008 he reported that the condition of the ankle would continue to deteriorate until the plaintiff reached the point where arthrodesis would be required.

116 The medico-legal experts relied upon by the plaintiff all reported that the plaintiff presented reasonably and that her complaints were consistent with her injuries.

117 The Wodonga Regional Health Service in October 2004 reported that the plaintiff was motivated and positive throughout the period of her attendance at its pain clinic.

118 In evidence to the court the plaintiff stated that standing caused her ankle to stiffen and lock up and increased her pain. She said she limped at times, although she tried to avoid doing so. She said her left foot dragged. Her evidence concerning her left leg on 22 September 2008 included the following: Q. What about weight bearing, for argument's sake, if you're in a situation where you had to put all your weight on your left leg to get out of an office chair, could you do that, or would your leg give way, what would happen? A. Sometimes the leg gives way, if I'm sitting or standing in the one spot I go to walk off and sometimes the foot doesn't even feel like it's there and it's numb and it doesn't move, doesn't bend, so the pain shoots straight up my ankle bone and. Q. Would there be a barrier to you working in an office environment if you couldn't leave your position by using your right leg and you had to use your left leg to get up, that's what I'm talking about? A. Well if I had to get up with my left leg - Q. Yes? A. - I wouldn't be able to get up with just my left leg all the time, no, no. Q. Can you fully weight bear on your left leg, what's the situation? A. I can't balance on my left leg on one foot, I need something to hold onto and that's from pain and just balance. Q. I see. What happens if you put all your weight on your left foot, what happens, if anything? A. I have instant pain, it goes into the front ankle joint. I gather my thoughts in my head and just try and do what I can with the foot.

119 The plaintiff was subsequently questioned about her capacity to bend. She said she could bend, but it caused her pain and that she developed a technique to deal with situations where she was required to retrieve items from the floor. This involved her bending onto her right knee and half bending her back.

120 The plaintiff was asked to provide a demonstration to the court of the way in which she ascended steps. She did this by walking up the steps to the witness box, leading with her right foot and using the handrail for support. She denied that she could, without difficulty, ascend steps leading with her left leg.

121 The plaintiff agreed she could walk quickly for short periods. She said this caused her pain and she did so only when necessary.

122 The plaintiff agreed that the DVD recording of her activities appeared to show her moving normally on 30 August 2008. She was seen to bend into a car with apparent ease. She said she did this using a particular technique. She was seen to take a number of steps quickly. These movements took place over a very short period of time. For the remainder of the time during which the plaintiff was seen on the recording she sat inside the car while her companion washed it with a hose on the outside and vacuum cleaned the inside. The plaintiff offered no assistance. She moved from time to time in the front passenger seat, at one time in a rocking motion.

123 On 19 September 2008 the plaintiff was recorded from a rear view. She walked slowly with one arm across her back resting above her right hip. She was not cross examined about this recording.

124 On 23 September 2008 the plaintiff was driven to the rear of a shopping centre in Albury prior to the commencement of the court proceedings. She left the car at a point adjacent to what, but for the dry weather in the Albury region, would have been a grassed verge. It comprised instead a bare earth surface with a small amount of grass remaining on it. It was suggested to the plaintiff that leaving the car at this point was contrary to her evidence that she had difficulty walking on uneven surfaces. Viewing the recording closely, it appeared to involve a few steps only and a surface that was little more uneven than the average footpath.

125 Asked why she was driven to this point rather than to the door of the court, the plaintiff said that she was feeling tight in her back and she wanted to walk through the shopping centre to loosen up and purchase a health juice. She disagreed that she walked without apparent difficulty. She denied that her hips appeared to be level. My observations of the plaintiff's activities as recorded on the DVD were that she walked slowly, with a slight limp and with a clear indication that her left foot turned out as she walked.

126 On the afternoon of the same date, the plaintiff was recorded walking slowly with her hand and arm across her back. She was challenged because she stepped from a car onto her left foot and then mounted four to five steps leading with her left foot on the first step. It was put to her that this was inconsistent with her in court demonstration. The plaintiff's response was that the steps in the courthouse were curved and more difficult to ascend so that she needed the support of the handrail. She also pointed out that the camera did not show what she was doing with her head or the point at which she stopped to stretch her foot or remove her shoe.

127 A further segment of the recording on that date showed the plaintiff partially bending from the waist from a seated position. This was said to be inconsistent with the plaintiff's evidence concerning the need to use a technique involving the right knee. However, I noted the plaintiff's evidence that she could bend although such movement hurt or pulled on her back.

128 The plaintiff complained of a number of persisting symptoms including headache, difficulties with attention, concentration, memory, mood disturbance and insomnia. Mr Harris and Mrs Patricia Harris confirmed her complaints and gave evidence of her distress at her continuing discomfort. The diagnoses suggested by the medical evidence included post concussional syndrome, Adjustment Disorder with Depressed Mood, Post Traumatic Stress Disorder and Borderline Personality Disorder.

129 The last of these diagnoses was made by Dr Haik and was based on the plaintiff's pre-accident history of psychiatric illness.

130 This history involved experiences of domestic violence and alcohol abuse in her parents' marriage and violence and abuse directed at her by her mother after her parents' marriage failed and her father left the family home. The plaintiff said as a result she left school at the age of 15 and joined her father, working as a rouseabout in shearing sheds. Her father was a heavy drinker and the plaintiff when living and working with him was exposed to and participated in a culture of excessive alcohol consumption.

131 The plaintiff entered into a relationship with Mr Scott Harris in 1991. Their first child was born in 1993 following which the plaintiff was reported to have suffered from post natal depression.

132 There followed a period of separation from Mr Harris. The plaintiff became involved in another relationship where she suffered physical violence at the hands of her partner. She attempted suicide in 1995. She was treated at Albury Base Hospital where she was referred to Dr England for psychiatric treatment. The plaintiff was discharged to the home of Mr Harris' parents.

133 The plaintiff was reconciled with Mr Harris in 1997 and their second child was born in 1999. The plaintiff again suffered from post natal depression, more severe on this occasion. She said that while suffering from this condition she consumed alcohol to excess, developed a gambling problem and smoked marihuana.

134 In October 2001, on her own initiative, she was admitted to O'Connor House in Wagga Wagga for rehabilitation. The plaintiff claimed that the three week course was successful in allowing her to manage her problems and that up to 2003 she lived happily with her family on a 15 acre property at Holbrook purchased in 1999, where they kept horses and large number of other animals. They sold the property to fund the purchase by the plaintiff and Mr Harris of a café business in Culcairn.

135 Mr Harris said that prior to the accident the plaintiff had put her bad times behind her and he described her as energetic, flamboyant and coping with work in the café as well as managing their home.

136 Mrs Patricia Harris described the plaintiff prior to the accident as confident, outgoing and happy apart from the episodes of post natal depression. She said the treatment provided at O'Connor House restored the plaintiff's mental health and that she was enthusiastic, capable and happy. She said the plaintiff and Mr Harris were planning to marry.

137 It was in the light of this background that Dr Haik reached his diagnosis of Borderline Personality Disorder. He acknowledged that such a diagnosis was best made after consultations over a period of time rather than on one assessment but considered the records of her long and emotionally arduous lifetime experiences were a sufficient basis for his conclusion. He said the borderline personality traits facilitated the plaintiff's initial adverse reaction to her relatively severe injuries but that those traits were responsible for her current presentation and it was unlikely that she continued to suffer emotionally from the consequences of the accident.

138 Dr Haik rejected the diagnoses made by both Dr Gertler and Dr Walden of Post Traumatic Stress Disorder and Adjustment Disorder with Depressed Mood. Dr Gertler, referring to the plaintiff's prior history, noted that she apparently recovered from three prior depressive episodes and that she was free of depression for a significant period prior to the accident. Having regard to these prior episodes, both Dr Gertler and Dr Walden expressed the opinion that the plaintiff was more vulnerable to the development of a psychiatric disorder as a result of the accident. Dr Walden said it was not uncommon for those with chronic pain to become clinically depressed.

139 Dr Gertler also raised the question of whether the plaintiff sustained brain damage as a result of head trauma in the course of the accident so that she suffered from post concussional syndrome. Investigations of the level of the plaintiff's cognitive capacity were undertaken by Dr Stargatt and Dr Langeluddecke. They concluded that the plaintiff had not suffered cognitive impairment as a result of the accident.

140 Dr Stargatt stated that the plaintiff's symptoms suggested a diagnosis of post concussional syndrome but also noted that the tests she administered to the plaintiff indicated that she suffered from anxiety and depression which, coupled with persisting severe pain, could be the cause of the cognitive difficulties she reported.

141 Dr Langeluddecke rejected the diagnosis of post concussional syndrome stating that the plaintiff's longstanding history of alcohol abuse, anxiety and depression and ongoing pain were neuropsychological features of greater significance than the mild head injury she suffered in the accident. She agreed that the plaintiff's cognitive difficulties were related to depression, anxiety and pain. She noted that the plaintiff suffered from ongoing depression. She said this was in keeping with her pre-accident condition but accepted that her condition was possibly exacerbated by her ongoing physical problems and associated pain.

142 Dr Haik found no evidence of Post Traumatic Stress Disorder. Dr Langeluddecke accepted that the accident was a very traumatic experience and that the plaintiff developed symptoms of Post Traumatic Stress Disorder but stated that this was resolved. Dr Gertler accepted that the symptoms of this disorder were abating when he examined the plaintiff in March 2007. Dr Walden considered a Post Traumatic Stress Disorder was consistent given the nature of the accident.

143 Dr Haik's opinion was undermined by the following factors: 1 The plaintiff acknowledged that she was discourteous to Dr Haik who noted this discourtesy and reported that she behaved in an irritable manner and swore easily. Dr Haik also noted the plaintiff's expression of anger, and resentment at being required once more to go through her problems with a medical practitioner and chronic dissatisfaction with all of her adversities during her life. The plaintiff offered an apology at the conclusion of the consultation and told Dr Haik that this was not the way she usually behaved. This statement by the plaintiff was supported in much of the other medical material and by her presentation during the lengthy periods during which she gave evidence to the court. It appeared therefore that Dr Haik was persuaded to a negative view of the plaintiff by this uncharacteristic behaviour. 2 With this negative approach, Dr Haik appeared to consider that it was his function to assess the plaintiff's credit generally. In so doing, he misunderstood or misreported some of the materials with which he was provided. He made no reference to the plaintiff's ongoing back pain, referring only to pain in the ankle. He made particular note of the plaintiff's understatement of her weight at the time of consultation. Perusal of the medical reports indicated that the plaintiff was in fact weighed by medical experts on a number of occasions at the weight she stated, namely 49 kgs. 3 Dr Haik referred to inconsistencies between the information concerning the accident supplied to him by the plaintiff and that contained in the reports of other examiners, in particular Dr Dauncey. He appeared to apprehend that Dr Dauncey examined the plaintiff. This was not correct. Dr Dauncey was provided with a substantial amount of material that was either not in evidence or was incorrect or unreliable. The summary of what the plaintiff told Dr Haik appearing in paragraph 2.2 of his report was generally consistent with her evidence to the court. 4 Dr Haik accepted without question that Dr Dauncey's research is correct to reach the conclusion that the plaintiff's use of alcohol and cannabis prior to the accident impaired her recollection of events. Dr Dauncey in fact stated that the plaintiff's estimated blood alcohol content at the time of the accident was unlikely to impair her capacity to assess the defendant's extreme insobriety. She also stated that alcohol and marihuana most likely affected the plaintiff's judgment and capacity to assess the negative implications of her decision to travel in the car with the defendant. I found that the evidence of the plaintiff's consumption of marihuana was unreliable and therefore this part of Dr Dauncey's report was of no benefit. 5 Dr Haik referred to the plaintiff's obdurate refusal to submit to further surgery to the left ankle and relied on this as the basis for his assessment that she overstated her symptoms. The orthopaedic specialists who reported to the court were consistent in their opinions that the pain in the plaintiff's ankle will increase to the point where it will ultimately compel the plaintiff to submit to further surgery notwithstanding her current views. 6 Dr Haik acknowledged that Borderline Personality Disorder was best diagnosed over a period of time rather than on one assessment. The plaintiff was treated by psychiatrists for extended periods for depression. The defendant did not seek comment from those treating psychiatrists on the diagnosis suggested by Dr Haik.

144 I was not persuaded by the DVD recorded material to reject the plaintiff's evidence of her current condition, supported as it was by medical evidence of objective findings and of the plaintiff's consistent and straightforward presentation to the very many medical experts who were required to assess her. The recordings were of activities that extended over periods ranging from a few seconds to a few minutes. The plaintiff, in responding to questions concerning her level of capacity, indicated that she was able to undertake the activities shown but she qualified her answers by stating that they were done either very briefly or with consequent pain.

145 I accepted the opinions contained in the medical reports that the plaintiff's symptoms of Post Traumatic Stress Disorder were abating.

146 The neuropsychological evidence did not support a diagnosis of post concussional syndrome.

147 Notwithstanding the opinions expressed in Dr Haik's report I preferred the diagnosis of Adjustment Disorder with Depressed Mood as the major psychological consequence to the plaintiff from the accident. I accept that Dr Walden was not supplied with a full history of the plaintiff's pre-accident psychological condition. This was not a factor that affected the opinions of Dr Gertler, Dr Stargatt and Dr Langeluddecke, all of whom expressed the opinion that the plaintiff's injuries caused or exacerbated her depression.

148 Of these experts, only Dr Haik questioned the plaintiff's overall presentation. Dr Stargatt described the plaintiff as co-operative and said she applied appropriate effort to the performance of testing. Similarly Dr Langeluddecke said that the tests revealed no inconsistencies in outcome and that this was consistent with the keenness with which the plaintiff presented to perform to the best of her ability.

149 I find that the plaintiff was either recovered from her illness or was in a period of remission and vulnerable to further episodes of depression if exposed to stressful situations. I find that the accident and its aftermath placed stress on the plaintiff sufficient to reactivate the depression.

150 There was no doubt that the plaintiff had a prior history of psychological illness with periods of significant depression. The defendant pointed to clinical notes of the doctors in a general practice attended by the plaintiff between March 2000 and January 2003 as evidence of continuing problems with depression. Those notes indicated that in February 2001 prescriptions for Zoloft and Zantac were ceased and that Lovan was prescribed. In June 2002 the plaintiff was still receiving prescriptions for Lovan but the dose was reduced. On 7 January 2003 it was noted that Lovan was ceased as was all other medication. These notes therefore supported the evidence indicating that the plaintiff at the time of the accident had overcome these problems.

151 I find that the plaintiff suffered in the accident the serious physical injuries already described and that as a consequence she remained considerably disabled, in particular by reason of the injury to the left foot and leg and to the lumbar spine.

152 I find that the plaintiff suffered psychological injury as a result of the accident in the nature of Post Traumatic Stress Disorder from which she has made a substantial recovery.

153 I find that the plaintiff suffered psychological injury as a result of the accident in the nature of exacerbation of a pre-existing depressive condition in the nature of Adjustment Disorder with Depressed Mood.

154 The experts agreed that the plaintiff's condition was permanent and stable, except that the ankle already showed signs of osteoarthritis to the point where arthrodesis was likely within two years and the lumbar spine in the area of the fracture was likely to degenerate and increase the plaintiff's symptoms of back pain. The physical and psychological injuries have diminished and will continue to diminish the plaintiff's quality of life to a significant degree.

155 I assessed the plaintiff's general damages at $275,000.

156 At the time of the accident the plaintiff was operating with Mr Harris a café in Culcairn. She was responsible for the preparation of the food sold from the café and for the ordering of stock.

157 The defendant argued for a relatively modest award to compensate the plaintiff for her loss of income earning capacity having regard to evidence indicating that prior to the accident she earned income on a sporadic basis only, she was in poor psychological health and the prospects of successfully operating a business at the café in Culcairn were less than optimal. Further, it was argued that the plaintiff retained a substantial residual earning capacity, particularly if she retrained.

158 The plaintiff argued that her most likely economic circumstance, had the accident not occurred, was that she would continue to work in the food preparation and sales industry as a self employed operator of a café or restaurant. She claimed that her ongoing physical and psychological problems were such that she retained no realistic prospects of employment.

159 Medical evidence indicated that the plaintiff could not return to work as a cook or kitchen hand because of the standing and physical effort involved. A number of experts suggested that she would never return to any significant employment. Others suggested that with appropriate retraining the plaintiff could return on a full time basis to employment in a sedentary occupation.

160 The plaintiff faced the problem that the major recorded source of her income prior to the accident was provided through Centrelink benefits. The information provided indicated that she received income support in various forms and at various intervals between 1991 and 1993, 1995 and 2000 and 2002 and 2003. No tax returns, notices of assessment or group certificates for the tax years prior to 2003 were in evidence.

161 This position was said to arise because during much of the period prior to the accident until 2002 the plaintiff worked without monetary return for Mr Harris' parents in their business of a bakery in Holbrook and subsequently for Mrs Harris and Mr Scott Harris when they operated a roadhouse business in Holbrook.

162 Mrs Harris said that while working in the bakery the plaintiff lived with her and Mr Terry Harris and was remunerated by way of food and accommodation. The evidence was that both Mr Terry Harris and the plaintiff worked in the roadhouse business and that they were paid for their work through the share of the profits of the business paid to their respective partners.

163 Mrs Harris said that the plaintiff was of considerable value in developing both businesses and she credited her with innovations leading to an increase in the turnover of the bakery business so that it was sold at an advantageous price. Similarly, she said the plaintiff developed the menu at the roadhouse in order to cater for the dietary needs of the truck drivers who were the major customers and offered additional services, such as laundry. In this way, the business was increased.

164 When the roadhouse business ceased in early 2002, the plaintiff and Mr Scott Harris discussed obtaining a business of their own. With this in mind, during 2002 the plaintiff attended a commercial cookery course at the Riverina Institute of TAFE, completing 21 of the 23 required subjects.

165 In late 2002 the plaintiff and Mr Harris purchased the café business in Culcairn and operated that business for about seven weeks prior to the accident.

166 They gave evidence that at the time of purchase the café was typical of a small country town, offering takeaway food, limited groceries and video and DVD rentals. They said that they made improvements both to the appearance of the premises, to the standard of food offered, the grocery section of the café and increased stocks of videos and DVDs available for hire. They commenced work on an outdoor eating area to expand the numbers of patrons who could be accommodated for seated meals.

167 They claimed that the reaction of the residents of Culcairn to these improvements was positive and the returns during the first few weeks of operation exceeded their expectations.

168 As far as the plaintiff's psychological health was concerned, there was no evidence that the plaintiff was hampered by depression in pursuing her TAFE course in 2002 and there was no evidence that the plaintiff was at the time of the accident hampered by depression in her activities at the café. The plaintiff spoke positively about the steps she took to vary the menu and of her plans to introduce further improvements to the standard and variety of meals available. Mr Harris and Mrs Patricia Harris said that she was coping well with her lengthy shifts in the café and her household duties. Mr Harris said that she had put her bad times behind her.

169 The defendant challenged the assessment made by the accounting expert, Mr Rosetto, on the basis that the plaintiff and Mr Harris were inexperienced in the operation of a business, that they purchased the business without appropriate advice concerning its value and profitability and that returns from the business did not appear to be affected by the absence of the plaintiff after the accident. These criticisms were answered by pointing to their joint experience in the roadhouse business, the assistance and advice received from Mr and Mrs Harris both in the operation of the business and in the assessment of its value prior to purchase, the assistance they received from their local accountant and to the regular injections of cash required after the accident to keep the business solvent until to its ultimate failure in May 2004.

170 The accountants, Mr Rosetto and Mr Godfrey, addressed the likely returns to the plaintiff had she continued to operate the café and there was debate between them concerning the appropriate benchmark to be applied to determine the anticipated gross profit of the business.

171 Examination of the opinions of the accountants emphasised the difficulties involved in determining with precision the financial consequences to the plaintiff resulting from her incapacity to work in the café business. These difficulties arose out of the short period during which the plaintiff and Mr Harris jointly operated the café and the paucity and unreliability of their financial records. Such evidence as there was indicated: 1 The dispute between the accountants did not relate to the percentages established by the FMRC benchmarks to which they referred but to the appropriate benchmark to be adopted. 2 The benchmark adopted by Mr Godfrey was lower than the 31% profit margin that he assessed based on the financial returns of the prior operators of the café. 3 Those figures, in any event, proved to be unreliable since they clearly understated the income of the business and claimed substantial equipment rental expenses that were not incurred by the plaintiff and Mr Harris. 4 These factors suggested that the benchmark for coffee lounges suggested by Mr Rosetto was a more appropriate measure than that applying to a corner store/mixed business. 5 The business of the café was affected by the plaintiff's absence because: (a) the weekly returns declined; (b) stock was pilfered by employees who were unsupervised while Mr Harris' attention was focussed on the plaintiff's needs.

172 The result was that I preferred Mr Rosetto's approach to the assessment of the likely returns of the business to that of Mr Godfrey. Mr Rosetto assessed the plaintiff's loss on the basis that, as the partner with the major responsibility for food preparation, her share of the profits was to be 70%. This was not correct. The plaintiff gave evidence that she and Mr Harris were to share equally in the profits.

173 On this basis, however, the plaintiff's income at the time of the accident was established at approximately $546 gross per week inclusive of superannuation. This was little different from the figures of $400 to $500 per week suggested by the defendant as the starting point for the calculation of the plaintiff's loss.

174 It was argued for the plaintiff that I should assess her income earning capacity by reference to average weekly earnings figures provided by the Bureau of Statistics for adult full time female employee cooks, full time adult female employee secretaries and full time adult female employees. By averaging these figures with the estimate of the likely income from the café a weekly gross figure of $707.77 was proposed as the appropriate basis for the assessment of the plaintiff's income loss.

175 I rejected this approach. There was no evidence to suggest that the plaintiff ever earned income at the level of a full time adult female employee. Although she attended courses and obtained some training in office skills in 1992, she never applied those skills and the plaintiff said that she was disinclined towards office work. The commercial cookery course attended in 2002 did not qualify the plaintiff for a position as an adult female cook. The material provided by TAFE indicated that the plaintiff was required to complete all of the subjects in her course and undertake a four year period of apprenticeship before that qualification was obtained.

176 I preferred to adopt the figure of $546 as the plaintiff's gross weekly income at the time of the accident. From this figure must be deducted income tax and to this figure must be added the intangible benefits to the plaintiff of operating a food outlet, such as the meals provided and other benefits available to a small business operator. This resulted in a figure, necessarily inexact, of $500 net per week.

177 In deciding the extent to which this income earning capacity would have been exercised by the plaintiff but for the accident, I decided that there was no evidence to suggest that it would have been affected by the plaintiff's psychological health. Further, although on paper, there was little evidence to indicate that the plaintiff worked regularly, the information provided by Mr Scott Harris and Mrs Harris was not challenged. The result was that, aside from periods after the birth of her children and interruptions related to her mental health, it appeared that the plaintiff was engaged in regular employment.

178 The plaintiff has not worked since the accident. Her claim was made on the basis that she was totally incapacitated by her injuries and that she would not return to the workforce in the future.

179 Although there were a number of opinions to the effect that, with appropriate retraining, the plaintiff could secure sedentary employment in an office environment, no retraining opportunity was offered to her by the defendant. Having regard to the absence of that opportunity and the evidence of the fluctuating nature of the plaintiff's symptoms and the treatment required since the accident, I accepted that it was appropriate to award her full loss of income to date. The amount allowed to 13 February 2009, calculated on the basis of $500 per week inclusive of superannuation for 310 weeks is $155,000.

180 As far as the future was concerned, there were opinions ranging from those of Dr Champion to the effect that the plaintiff was unlikely ever to return to work, to those of Dr Adler that the plaintiff could work in a clerical position for up to 15 hours a week increasing to 20 hours after arthrodesis of the ankle, and those of Dr Dalton that the plaintiff had prospects of returning to full time employment.

181 Dr Athanasou estimated the plaintiff's residual earning capacity to be a fraction of that she possessed at the time of the accident because, although a range of sedentary positions was theoretically available, her employability was affected by: 1 Her lack of transferable skills, the office skills she obtained in 1992 being no longer current and never used; 2 Transport difficulties facing the plaintiff; 3 The restricted local labour market; and 4 The negative responses of potential employers to the restrictions on her physical capacity.

182 Mr Stinson examined the issue of regional employment prospects and considered that with retraining the plaintiff's prospects of full time employment were average. He did not define the term average. Nor did he elaborate on the plaintiff's prospects if she were restricted to part time employment. Mr Stinson noted that the unemployment rate in the Moira Shire, in which Cobram was situated, notwithstanding the substantial growth in employment in the period between 2001 and 2006 was 8.1%, compared with the national rate of 5.3%.

183 The plaintiff said she was disinclined to office work and that she preferred the option of purchasing another small property that she would work as a worm farm or on which she would breed animals.

184 My assessment of the plaintiff's most likely future circumstances but for the accident was that she would remain self employed in the business of the preparation and sale of food. There was no doubt that she would not return to this activity.

185 There was no doubt that she retained some capacity for sedentary or very light work on a part time basis. Her prospects of securing employment were limited by her disabilities, physical and psychological, her regional location and the likely deterioration in the condition of the left ankle and lumbar spine.

186 With these factors in mind, I assessed her future income earning capacity at $100 per week and her loss at $400 per week. I have therefore allowed her future income loss at $273,054, inclusive of superannuation.

187 Interest was claimed on the award for past income loss. No materials were provided to satisfy the requirements of s 137(4) of the Motor Accidents Compensation Act 1999 and this part of the claim was not addressed in submissions. If the plaintiff wishes to pursue this part of the claim, I will hear further argument.

188 The plaintiff and Mr Harris said that at the time of the accident she was responsible for the housework and management of their household that included the care of their two children.

189 Those responsibilities and the care of the plaintiff were undertaken after the accident by Mr Harris and his parents. Mr Harris also provided transport and assistance to the plaintiff in conveying her to medical appointments, a task that was particularly time consuming until their move to Albury.

190 The estimates of the plaintiff's reasonable need for assistance ranged from the substantial amounts proposed by Dr Adler to the minimal amounts suggested by Ms Barbuto.

191 The plaintiff's claim, based on Dr Adler's assessment, was for 11 hours per week from the date of the accident until 2010 and thereafter 7 hours per week.

192 I was satisfied from the evidence that Ms Barbuto substantially underestimated the plaintiff's needs both past and future.

193 I was also satisfied that from the time of the plaintiff's discharge from Albury Base Hospital on 28 March 2003 until her move to Cobram in October 2004 and for a period of three weeks after back surgery in July 2007, it was appropriate to average the plaintiff's needs for domestic and attendant care at 11 hours per week. I calculated these periods to amount to 42 weeks and applied the hourly rate of $20.81 to arrive at an award of $9,614.22.

194 The plaintiff said that she managed and continued to manage cooking for her family by sitting on a kitchen stool. She was able also to undertake the lighter aspects of her housework such as dusting, tidying, light washing and light shopping. She required assistance with heavier housework such as vacuum cleaning, changing bed linen, heavy wash loads, heavy shopping, mopping floors and cleaning the bathroom as well as general home and garden maintenance.

195 The contentions of the defendant's experts to the effect that the plaintiff was able to manage tasks such as vacuum cleaning if taken slowly and with rest periods, did not explain how the plaintiff was to move furniture or secure the additional time involved in completing such tasks. I did not accept that it was reasonable that the plaintiff be required to undertake housework of this nature.

196 I therefore assessed the plaintiff's needs for assistance with heavy housework, shopping and general home maintenance at six hours per week both past and future.

197 I calculated the remaining past period of care at 264 weeks and applied the hourly rate of $20.81 to arrive at an award of $32,963.04.

198 The amount allowed for the future at the hourly rate of $30 for six hours per week was $177,282. In assessing this amount I have taken account of the fact that the plaintiff was likely at some stage to be relieved of her obligations to her children. Against this, however, was the material indicating that the plaintiff's condition, particularly, in relation to her lumbar spine was likely to deteriorate.

199 Past medical expenses were agreed in the sum of $45,734.61.

200 The plaintiff continued to have Valium, Normison and Lexapro prescribed at regular intervals by her general practitioner. She used hot and cold packs to relieve pain. She also took fish oil supplements.

201 The claim for future medication was made out with the exception of that relating to fish oil. There was no medical evidence to support the therapeutic benefit of this substance. The claim was allowed in the sum of $16.65 per week, amounting to $16,398.58.

202 Other future medical expenses totalling $39,737 were claimed on the basis of estimates provided by Dr Adler that included the cost of surgery to the left ankle and the lumbar spine. I considered it highly probable that, notwithstanding her current attitude to further surgery on the ankle, the plaintiff would proceed to arthrodesis to deal with increasing levels of pain. I accepted as a possibility only the potential for spinal surgery. I considered that the combined amounts claimed for psychiatric and psychological treatments were overstated. In the circumstances I reduced the amount claimed by $5,000 and allowed a lump sum of $34,737.

203 Rehabilitation was recommended by a substantial majority of medical experts. I allowed it in the sum claimed of $2,800.

Non-economic loss $275,000.00 Past Income Loss $155,000.00 Future Income Loss $273,054.00 Past Care $42,577.26 Future Care $177,282.00 Past Out of Pocket Expenses $45,734.61 Future Out of Pocket Expenses $51,135.58 Rehabilitation $2,800.00

205 From these figures must be deducted a proportion of 20% to allow for contributory negligence.

206 Finalisation of the orders will await the outcome of argument, if any, on the issue of whether interest is to be paid on the amount allowed for past income loss.

208 The proceedings are adjourned to a date to be fixed to deal with issues of costs and interest on past economic loss and for the making of final orders.

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